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CAN I BREAK MY LEASE IF THERE IS MOLD IN MY APARTMENT?

Statutory citations have been updated to reflect changes enacted in October 2019.

Can a tenant break his lease due to mold in the rental property? This is one of the most frequent queries we get whenever a landlord or tenant (L/T) finds mold in the leased premises.

There is no simple answer to this question. Whether a T has a right to terminate the lease without penalty depends on the particular facts of each case. However, Virginia law provides some guidelines that L/Ts should keep in mind before the start of the leasing relationship.

The purpose of this blog is to provide both L/Ts a basic framework for understanding the issues involved in lease terminations due to mold in the rental property. What are the rights and responsibilities of L/Ts? Who is liable if mold is discovered on the property? When can a tenant terminate the tenancy without exposing himself to liability?

Preliminary Issues:

1. What exactly has been discovered and how long has it been around?

2. Which areas of the house have been affected?

3. Who discovered it and how?

4. What is the source of the mold? Is there any water intrusion that is feeding its growth?

5. Has a certified mold inspector or industrial hygienist inspected and sampled the property?

6. Has the L/T been notified in writing? If so, when?

7. What remedial measures, if any, have been taken by the L/T? The definition of "mold remediation" under Virginia Code § 55-248.4 (§ 55.1-1200) establishes certain "professional standards" that Landlord's must follow in remediating any mold on the property.

What is Mold?

The Center for Disease Control (CDC) defines mold as follows: "Molds are fungi that can be found both indoors and outdoors. No one knows how many species of fungi exist but estimates range from tens of thousands to perhaps three hundred thousand or more. Molds grow best in warm, damp, and humid conditions, and spread and reproduce by making spores. Mold spores can survive harsh environmental conditions, such as dry conditions, that do not support normal mold growth."

Remember that mold is ubiquitous; it is everywhere and grows naturally as part of the environment. The presence of mold indoors does not generally pose a threat to human health unless mold spores land on a wet or damp spot and begin producing toxic byproducts called mycotoxins (e.g. Stachybotrys chartarum, Penicillium, Aspergillus etc.).

Key Definitions Under VRLTA § 55-248.4 (§ 55.1-1200):

· "Visible evidence of mold" means the existence of mold in the dwelling unit that is visible to the naked eye by the landlord or tenant in areas within the interior of the dwelling unit readily accessible at the time of the move-in inspection.

· "Readily accessible" means areas within the interior of the dwelling unit available for observation at the time of the move-in inspection that do not require removal of materials, personal property, equipment or similar items.

· "Interior of the dwelling unit" means the inside of the dwelling unit, consisting of interior walls, floor, and ceiling, that enclose the dwelling unit as conditioned space from the outside air.

· "Mold remediation in accordance with professional standards" means mold remediation of that portion of the dwelling unit or premises affected by mold, or any personal property of the tenant affected by mold, performed consistent with guidance documents published by the United States Environmental Protection Agency, the U.S. Department of Housing and Urban Development, the American Conference of Governmental Industrial Hygienists (the Bioaerosols Manual), Standard Reference Guides of the Institute of Inspection, Cleaning and Restoration for Water Damage Restoration and Professional Mold Remediation, or any protocol for mold remediation prepared by an industrial hygienist consistent with said guidance documents.

The Move In Inspection Report And "Visible Evidence of Mold"

The VRLTA allows the landlord, the tenant, or both parties jointly to prepare a move in inspection report "itemizing damages to the dwelling unit existing at the time of occupancy." see VRLTA § 55-248.11:1 (§ 55.1-1214). The purpose of this statute is to create a written record documenting the condition of the premises at the beginning of the tenancy.

A move in inspection report documenting the condition of the premises at the time the tenant takes possession of the rental property is mandated by VRLTA § 55-248.11:1 (§ 55.1-1214) (Inspection of premises). The statute allows the Landlord, Tenant or both parties jointly to prepare such report "itemizing damages to the dwelling unit existing at the time of occupancy."

Landlords should be aware that VRLTA § 55-248.11:2 (§ 55.1-1215) requires them to disclose the presence of any "visible evidence of mold" in the "readily accessible" areas inside the rental property. If there is no such visible evidence, then it should be noted on the move in inspection report, which "shall be deemed correct unless the tenant objects thereto in writing within five days after receiving the report." (see section on Landlord's duties below). Why is this important?

"Rebuttable Presumption" Under Virginia Code § 8.01-226.12.

If the move-in inspection report does not indicate the presence of any visible evidence of mold, there is a rebuttable presumption in the law that no mold existed in the premises at the beginning of the tenancy.

This is codified under 2008 law enacted by the General Assembly that provides Virginia landlords with a "safe harbor" under Virginia Code § 8.01-226.12, which states that if the move in inspection report indicates

· no visible evidence of mold in areas readily accessible within the interior of the dwelling unit, and

· the tenant does not object thereto in writing within five days after receiving the report,

· there shall be a rebuttable presumption that no mold existed at the time of the move-in inspection.

Thus, careful Landlords will ensure that the move in report is prepared with adequate care and reflects the presence or absence of mold. In the event of any subsequent mold discovery on the premises, Landlords have a viable defense that they are not liable, and that any mold growth was likely caused by the tenants.

During the tenancy, tenants have a duty to use "reasonable efforts" to maintaining the premises in a manner that prevents the growth of moisture and mold. This is codified under Virginia Code § 55-248.16(10) (§ 55.1-1227(10)), which states that a tenant must:

Use reasonable efforts to maintain the dwelling unit and any other part of the premises that he occupies in such a condition as to prevent accumulation of moisture and the growth of mold, and to promptly notify the landlord of any moisture accumulation that occurs or of any visible evidence of mold discovered by the tenant;

Therefore, tenants who neglect to "promptly notify" the landlord of any moisture accumulation or water leaks, or fail to properly maintain the premises, may eventually be liable for any mold growth in the premises. Under circumstances where the tenant is determined to be responsible for the mold growth, the Landlord may not be liable for the costs of mold remediation.

Landlord's Duty of "Ordinary Care" Related to Mold Remediation.

On the other hand, if the tenant discovers mold and promptly notifies the landlord of such condition, the Landlord must "promptly respond" and use ordinary care to remediate the mold in accordance with "professional standards." If the remediation timeframe exceeds 30-days, then the Tenant may legally terminate the lease without penalty (see below). Further, the Landlord must "reinspect the dwelling unit to confirm that there is no longer visible evidence of mold in the dwelling unit "(see Virginia Code 55-248.13; Va. Code 8.01-226.12(E).

Landlords should be very careful at this juncture in light of the Virginia Supreme Court's ruling in Sales v. Kecoughtan Housing Company, 279 Va. 475, 482, 690 S.E.2d 91, 95 (2010), in which the Court held that the landlord's representations regarding the mold conditions, and the remediation thereof, were statements of fact, not opinion, which could form the basis of a claim for fraud.

[W]e hold that Abbitt's alleged statements that the apartment was safe for habitation and that the mold problem had been remedied were statements of the present quality or character of the instant property, and thus statements of fact rather than opinion. These statements are alleged in the amended complaint to be misrepresentations of a material fact that were made to Sales, that Sales relied upon them, and that he was damaged as a result thereof. Thus, whether made intentionally or negligently, these alleged statements may serve as a basis for an action for actual or constructive fraud.

Expert Opinions.

The presence, or lack thereof, of a "mold condition" on the premises is not a straightforward issue. This often requires the opinion of a certified industrial hygienist or mold inspector illustrating the mold spore count in the premises, and more importantly, the types of specific mycotoxins that may or may not exist on the premises.

Mold Remediation and Relocation of the Tenant.

If there is a mold condition on the premises that "materially affects the health or safety" of the T, then the Landlord may elect to temporarily relocate the T to a hotel or other alternate accommodation while remediation is completed at the premises. If the L so chooses, then under Virginia Code § 55-248.18:2., the L must provide the tenant with either:

i) A comparable dwelling unit, as selected by the landlord, at no expense or cost to the tenant; or

ii) A hotel room, at no expense or cost to the tenant.

Remember, that even if the presence of mold is established, the tenant cannot withhold rent. There is a specific process called the Tenants Assertion that must be followed, which this article discusses below.

Are Managing Agents Liable for Mold In the Property?

Under Virginia Code 8.01-226.12(C), managing agents are not liable to Tenants for their personal injuries due to mold unless they have actual knowledge of the mold and fail to discloseit in the move-in inspection report.

Conversely, if the presence of mold is not known to the managing agent but he is put on notice by the tenant, then he will only be liable if he is required to perform maintenance on the rental property, and he fails to observe ordinary care.

The 21/30-Day Notice to Cure - How to Notify The L/T of Mold In The Property (VRLTA §§ 55-248.21; 55-248.31) (§ 55.1-1234; 55.1-1245)?

In the event that the Landlord has failed to promptly remediate a mold condition on the premises despite being notified of the same, the T should serve a 21/30-day Notice to Cure upon the L "specifying the acts and omissions constituting the breach and stating that the rental agreement will terminate upon a date not less than 30 days after receipt of the notice if such breach is not remedied in 21 days" (see VRLTA § 55-248.21) (§ 55.1-1234).

What Is A Tenant's Assertion?

The Tenants Assertion and Complaint is a civil instrument that Ts can use to assert civil claims for damages related to tenancy against the Landlord. You can obtain the actual form here. Instead of withholding rent from the Landlord, Tenants should file a Tenants Assertion in court and escrow their rent with the court. This way, the judge decides at the end of the trial, if any, who gets the escrowed rent.The applicable statute, VRLTA § 55-248.27(§ 55.1-1244)(Tenant's assertion; rent escrow), states that,

The tenant may assert that there exists upon the leased premises, a condition or conditions which constitute a material noncompliance by the landlord with the rental agreement or with provisions of law, or which if not promptly corrected, will constitute a fire hazard or serious threat to the life, health or safety of occupants thereof...

What are some of the circumstances warranting the filing of a Tenants Assertion in General District Court? The statute specifically names the following conditions; however, its actual application is much broader, and covers situations involving mold because those constitute a "serious threat to the life, health or safety."

· lack of heat

· lack of hot or cold running water

· lack of light

· Lack of electricity

· Lack of adequate sewage disposal facilities

· infestation of rodents

· existence of paint containing lead pigment on surfaces within the dwelling

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